Almeder v. Town of Kennebunkport

ROBERT F. ALMEDER et al., Plaintiffs, v. TOWN OF KENNEBUNKPORT et al., Defendants.

No. RE-09-111

Superior Court of Maine, York

September 29, 2016

ATTORNEYS FOR PLAINTFFS: SIDNEY THAXTER CURTIS THAXTER LLC

CHRISTOPHER PAZAR DRUMMOND & DRUMOND LLP

AG FOR INTERVENOR LAUREN E PARKER AG OFFICE OF THE ATTORNEY GENERAL

ATTORNEYS FOR DEFENDANTS: MELISSA HEWEY AMY TCHAO DRUMMOND WOODSUM

ORDER ON PENDING MOTIONS ^[1]

This order addresses the following motions: Plaintiffs' request under M.R. Civ. P 55(a) for entry of default against "all persons unascertained;" the State of Maine's motion for an order to amend and conform the pleadings; and Plaintiffs' two motions that seek rulings in limine on anticipated evidentiary and procedural issues at trial.

1. Plaintiffs' Request for Default against "All Persons Unascertained"

Pursuant to court order of August 30, 2010, as amended by an order of September 10, 2010, Plaintiffs served notice by publication to "Persons who are Unascertained and to the General Public.^[2] The notice was published in the Portland Press Herald on three days over three consecutive weeks-on September 16"v September 23'-, and September 30-, 2010. (Notice of Filing Aff. of Publication: Portland Press Herald (Oct. 5, 2010).) The notice specifically identified the date, location and nature of the pending action, the names and addresses of the Plaintiffs, as well as the present Defendants in the lawsuit.^[3] Plaintiffs have filed a request for an entry of default against "all persons unascertained" pursuant to M.R. Civ. P. 55(a).

Rule 55(a) provides that the clerk "shall enter" a default with respect to "a party against whom judgment for affirmative relief is sought" when that party "fails to plead or otherwise defend as provided by these rules and the fact is made to appear by affidavit or otherwise." Id. There being no objection, Plaintiffs' request for entry of default is granted. Pursuant to Rule 55(a), the clerk, shall enter a default against:

"all persons who are unascertained, not in being, unknown or out of the State, heirs or legal representatives of such unascertained persons, or such persons as shall become heirs, devisees or appointees of such unascertained persons who claim the right to use or title in plaintiffs' property other than persons claiming ownership or easement by, through, or under an instrument recorded in the York County Registry of Deeds."

2. State of Maine's Motion to Amend and Conform Pleadings

The State filed a motion to amend its pleading to conform to the evidence and proceedings in this action in order to "reflect that the State has litigated the claim that extensive public trust rights exist in the intertidal zone so that the State may further participate in and, as needed, appeal this Court's decision of the public trust 'claim.'" (State's Mot. for Order to Am. and Conform Pleadings 1.)^[4] The motion comes in the wake of the Law Court's 2014 decision vacating this court's 2012 partial judgment, noting that "no claims implicating the public trust doctrine are properly before us for review" because "the only claim to implicate the public trust" in the case was plaintiffs' title claim, which had yet to be addressed, and because the State had not filed a separate claim raising the public trust doctrine. Almeder et al. v. Town of Kennebunkport et al., 2014 ME 139, ¶ 37, 106 A.3d 1099.

Plaintiffs oppose the State's motion. They contend that the motion is untimely, and that the Law Court has already dismissed the public trust claim as untimely. Further, they contend that the State's claim of public trust rights is not justiciable and amounts to a request for an advisory opinion because there has been no infringement of the public's use rights, and that the public trust use rights in the intertidal zone are coextensive with common law rights of fishing, fowling and navigation, and subsumed by the public's rights to use the beach for recreational activities pursuant to the presumption of permissive use in the intertidal zone.

M.R. Civ. P. 15(b) provides that "[s]uch amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment." Moreover, leave to amend a pleading "shall be freely given when justice so requires." M.R. Civ. P. 15(a). "[I]f the moving party is not acting in bad faith or for delay, the motion will be granted in the absence of undue prejudice." Chrysler Credit Corp. v. Bert Cote's L/A Auto Sales, . 1998 ME 53, 115, 707 A.2d 1311. Undue prejudice may result when a proposed amended claim introduces an entirely new issue that has not been previously raised or litigated. Bangor Motor Co. v. Chapman, 452 A.2d 389, 393 (Me. 1982). Whether to allow a motion to amend "is left to the discretion of the trial court." Bernier v. Merrill Air Eng'rs, 2001 ME 17, ¶ 22, 770 A.2d 97.

The State of Maine sought to intervene as a defendant in this case, "citing the public interest in maintaining access to Maine's beaches." Order, Aug. 17, 2010, at 3. The court granted its motion, noting that "[t]his broad public interest in Maine's coast is distinct from the Town's particular interest in Goose Rocks Beach." Id. The State participated fully in the 2012 trial in this matter that focused directly upon the nature and extent of the public's rights in and use of Goose Rocks Beach. The State presented and queried witnesses at trial; submitted proposed findings of fact, conclusions of law and legal memoranda; and participated in the subsequent appeal to the Law Court.

Plaintiffs' complaint seeks (i) a declaration that they are "vested with title . . . free and clear of all claims . . . subject only to the public rights of usage in the Intertidal Property established by the Colonial Ordinance of 1647" (Count I for declaratory relief) and (ii) a judgment barring all claims of right in their property "subject to the limited public right in the Intertidal Property to fish, fowl and navigate as defined in the Colonial Ordinance of 1647" (Count II to quiet title). The scope of the public's use rights in the intertidal zone that are acknowledged by Plaintiffs is narrower than the scope of the public trust rights for which the State advocates. The extent of the general public's recreational rights in the intertidal zone encompassed by the presumption of permission would also appear to be narrower than the public trust rights claimed by the State because the former are merely permissive.

Accordingly, the States' motion to amend is granted solely to align the State's pleading with the reality of what has already transpired in this case, notably a full trial on the public prescriptive easement and public trust issues. The court reserves judgment as to any other issues that may arise depending on the outcome of the title trial, including the issue of whether the State's claim is justiciable at that point.^[5]

3. Plaintiffs' July 8, 2016 Joint Motion in Limine

Plaintiffs request in their July 2016 motion that the court issue an order (a) declaring that Justice Brennan's interpretation of the Danforth Deed in his 2011 summary judgment ruling is "law of the case" and not subject to re-litigation in this matter; and (b) requiring a party to make a threshold showing of title in order to "remain as a party in the title portion of this case, " i.e. have standing to challenge the opposing party's title. With regard to the latter issue, Plaintiffs also request that the court articulate the applicable burden of proof and the order of proof at trial.

a. Law of the Case and the Danforth Deed. The law of the case doctrine reflects the "wise policy that a judge should not in the same case overrule or reconsider the decision of another judge of coordinate jurisdiction." Blance v. Alley, 404 A.2d 587, 589 (Me. 1979) The doctrine serves a "practical judicial policy" that rulings on questions of law that are "clearly decided in the same action" should not be reopened by another judge in the same case except for "the most compelling reasons." Sprague v. Washburn, 447 A.2d 784, 787 (Me. 1982)

The law of the case doctrine resembles but does not operate as res judicata; nor does it deprive a judge of jurisdiction or power to rule differently on a question of law that previously has been decided by a different judge in the same case. Id.; Grant v. City of Saco, 436 A.2d 403, 405 (Me. 1981); Sprague v. Washburn, 447 A.2d 784, 787 (Me. 1982). See also Messenger v. Anderson, 225 U.S. 436, 444 (1912) (Holmes, J.) The doctrine does not bar revisiting a prior ruling on a legal issue when there is a lack of clarity, the availability of new evidence, or a need to correct error or prevent manifest injustice. Lord v. Murphy, 561 A.2d 1013, 1017 (Me. 1989). The Law Court has held that if a prior legal ruling in a case is erroneous it may be an abuse of discretion to invoke the law of the case doctrine as a reason for not revisiting it. Id.

The interpretation of a deed's language is a question of law. Eaton v. Town of Wells, 2000 ME 176, ¶ 19, 760 A.2d 232; Bennett v. Tracy, 1999 ME 165, ¶ 7 740 A.2d 751. In interpreting the Danforth Deed, Justice Brennan applied the conventional canons of legal construction^[6] and concluded: "On its face, this document has the appearance of a deed, but it is a deed that only acted to confirm legal title to lands previously granted to the Town's earliest settlers;" and thus "the 1684 document does not convey any grant of new title, specifically the common and undivided lands within the Town's boundaries, to the Town." Order on Mot. for Summ. J. Dec. 22, 2011, at 6, 8. This ruling was based on a careful review of the deed's language, an extensive summary judgment record...